baco ayub co ltd vs permanent secretary ministry of defence and national sercive 2023 tzhccomd 15 9 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE NO.40 OF 2015 BACO AND AYUB CO. LIMITED …….…………PLAINTIFF VERSUS PERMANENT SECRETARY MINISTRY OF DEFENCE AND NATIONAL SERVICE…….1ST DEFENDANT THE CHIEF OF DEFENCE FORCES, PEOPLE’S DEFENCE FORCES HEAD QUARTERS…. 2ND DEFENDANT THE HON. ATTORNEY GENERAL ...…......3RD DEFENDANT JUDGEMENT Last Order 08/12/2022 Judgement 09/02/2023 NANGELA, J.: This is a suit for specific performance. The Plaintiff, a limited liability company duly registered and carrying out its business in Dar-es-Salaam, Tanzania, is suing and seeking for judgement and decree against the Defendants, jointly and severally, as follows: 1. A declaration that the Defendants breached a contract for supply of Meals (Ready-to-Eat) Tender No.ME-020/2012/13/HG/G/01. 2. The Defendants to the Plaintiff TZS 4,913,131,500/= being the agreed principal amount. Page 1 of 29 3. Payment of TZS 3,000,000,000/= being compensation for loss suffered by the Plaintiff die to the Defendants failure to pay on time and failure to honour the contract as agreed. 4. Payment of TZS 1000,000,000 being interest, penalty, annoyance, and disturbances suffered by the Plaintiff due to the Defendants’ failure to pay on time as agreed. 5. Payment of TZS 500,000,000 as compensation for the loss suffered in the whole course, time wasted in the investment, exemplary damages and punitive damages resulting from the Defendants voluntary unlawful acts. 6. Payment of interest to the Plaintiff at a 22% rate per month on the amount stated in Nos.2, 3, 4 and 5 above, from the date when the claims accrued until final payment date. 7. Payment of interest to the Plaintiff at Court’s rate of 7% on the aforementioned amounts in Nos.2, 3, 4 and 5 here-above, from the Page 2 of 29 date when each claim accrued until date of final payment. 8. An Order for payment of General Damages as assessed by the Court. 9. Costs of this suit be provided and 10. Any other relief that this Court deems fit and fair to grant. On the 18th day of May 2015, the Defendants filed a joint written statement of defence denying each and every allegation made by the Plaintiff putting her to strict proof thereof. The matter proceeded to the normal pre-trial processes up to its hearing stage. On the 03rd day of November 2015 the hearing commenced. Upon conclusion of the hearing, this Court, on the 04th day of March 2016, set a date for the issuance of its judgement. On the 18th March 2016, therefore, this Court issued its judgement dismissing the entire suit with costs. The Plaintiff was dissatisfied by the decision of this Court and lodged an appeal process vide a Notice of Appeal, Misc. Civil Notice No.14 of 2016. However, upon discovering new important evidential materials that could have changed the course in the initial proceedings, the Plaintiff withdrew her Notice of Appeal from the respective Court and, on the 26th day of July 2016, the Court of Appeal issued an Order to that effect. Instead of pursuing the appeal, thus, the Plaintiff herein initiated a review process, having obtained an extension of time to do so. As such, Commercial Application No.10 of 2016 was Page 3 of 29 filed, heard and determined by the review Court on the 28 th day of February 2017. In its ruling, this Court (Mansoor, J) granted the application. She made an order that, the matter be re-heard and reconsidered on the following four (4) issues: 1. Whether the goods were imported in the names of the 1st and 2nd Respondents (Defendants herein). 2. Whether the goods were cleared by the 1st and 2nd Respondents (Defendants herein). 3. Whether the goods have been consumed by the 1st and 2nd Respondents (Defendants herein), 4. To what reliefs are the parties entitled. Dissatisfied with the said ruling of this Court, the Defendants herein preferred an appeal to the Court of Appeal by way of filing a Notice of Appeal to that respective Court. Later, however, through Civil Application No.211 of 2017, the Plaintiff herein successfully moved the Court of Appeal and the Notice of Appeal preferred by the Defendants got struck out with costs on the 07th day of October 2019, a decision delivered on the 22nd October 2019. The striking out of the said Notice of Appeal, created a room for the rehearing and re-determination of this suit, a process which was presided over by Hon. Phillip, J and, later Hon. Page 4 of 29 Mteule, J. However, Mteule J., got assigned to another duty station and the case file got assigned to me. Briefly, that account provides a background to this case. Its real facts, however, are better explained as here below. It all started in 2012 the year when, through tender adverts on Daily Newspapers and Habari Leo dated the 07 th and 11th September 2012, the 1st and 2nd Defendant invited interested bidders to submit bids for supply of tinned and dry food- (Meals- Ready-to-Eat). On the 3rd day of March 2013, the Plaintiff, who happened to have submitted her bid, was awarded Tender No.ME-020/2012/13/HG/G/01. As per the tender, the Plaintiff, being a successful bidder, was to supply 18,573 cartons of the said “Meals Ready to Eat” for breakfast and lunch for a consideration of TZS 4,913,131,500.00. The Plaintiff has alleged in her plaint, that, having been awarded the tender, she proceeded to place an order paying a total of USD$ 769,419 (TZS 1,700,000,000/=) as advance payment to the manufacturers of dry food and imported the said foodstuff to Tanzania. The Plaintiff alleged further that, when the shipping arrangement were on the way, the 1st Defendant wrote a letter to the Plaintiff, on the 9th day of May 2013, to call off the tender on the ground that, such tender was scheduled for the financial year procurement plan which was to start in July 2013 and run up to 30th June 2014. However, the Plaintiff alleges that, on 15th May 2013, she did write to the 1st Defendant a letter, Ref. No.B/103/2013, Page 5 of 29 informing the 1st Defendant that she had already placed an order and the consignment was expected to arrive at the Dar-es-Salaam Port, on the 20th day of July 2013 or a later date. It was alleged that, the Plaintiff’s letter dated 15th May 2013, was not responded to and, that, the consignment ordered by the Plaintiff arrived at the Dar-es-Salaam port whereupon the Plaintiff requested for the 1st Defendant’s assistance to have it cleared at the costs of the Plaintiff because the consignee’s name was the 1st and the 2nd Defendants. The Plaintiff alleges that, upon clearance, she delivered the consignment to the 2nd Defendant’s CO 511KJ Base Stores Department at the instructions of the 1st Defendant on 28th September 2013. It was further alleged that, on the 03rd of October 2013, after such delivery, the Plaintiff requested to be paid. Unfortunately, she was never paid to date. According to the Plaintiff, she had taken a loan from CRDB Bank Plc which had, by the time of filing the case, accumulated to a tune of TZS 4,755,501,483/= (being the outstanding loan, interest and penalties for a period of 14 months) due to the failure on the part of the 1st Defendant to pay her the amount arising from her supply of the said 18,573 cartons of the said ‘Meals-Ready-to-Eat’. It is from such a background, therefore, that, the Plaintiff sued the Defendants, jointly and severally and, called upon this Court to grant judgement in her favour. As I stated hereabove, after the previous review of this Court’s earlier decision, an order for its re-hearing and re- Page 6 of 29 consideration was given and four issues were framed. However, during the hearing of this case, I found it necessary, in terms of Order XIV Rule 5 (1) of the Civil Procedure Code, Cap.33 R.E 2019, to re-frame the earlier issues by adding one more issue, which was to come first. The newly added issue was: “whether at all the parties herein concluded a contract and if so, whether there was breach thereof.” I also directed the learned advocates for the parties herein to address that issue in there closing submissions as well. At the hearing, the Plaintiff called one (1) witness Mr. Ayub Amani, who testified as Pw-1and tendered a total of 24 exhibits. On the other hand, the Defendants called upon four (4) witnesses and tendered in Court seven (7) exhibits to establish the defence case. In terms of representation, the Plaintiff enjoyed the services of Mr. Seni Malimi and Mr. Erick Rweyemamu, learned advocates, while Mr. Baraka Nyambita and Ms. Hosana Mgeni, learned State Attorneys appeared for the Defendants. I appreciate their assistance and closing submissions which I have taken them on board as well in my consideration of the issues raised in this suit. As I commence my analysis of the issues raised in this case, I am guided by the settled legal principle that, he who alleges must prove. Sections 110 to 112 the Evidence Act, Cap.6 R.E 2020 and a host of cases, both reported and unreported, do affirm to that. See, for instance, the case of Paulina Samson Ndawavya vs. Theresia Thomasi Madaha, Civil Appeal No. 45 Page 7 of 29 of 2017 (unreported), in which the Court of Appeal was emphatic that: “the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable of proof. It is ancient rule founded on consideration of good sense and should not be departed from without strong reason...Until such burden is discharged the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party..." I am also guided by the settled legal principle that, unlike in criminal cases, where proof is to be established beyond reasonable doubt, proof in civil cases, as in the suit at hand, is only done on the balance of probability. With such principles in mind, let me now address the issues agreed upon earlier in light of the available evidence and the applicable law. Page 8 of 29 I will commence the analysis by looking at the issue which was additional to the earlier issues identified by this Court in the course of review of its earlier judgement. The new or additional issue was: “Whether at all the parties herein concluded a contract and if so, whether there was breach thereof.” As I stated earlier hereabove, the relationship between the Plaintiff and the 1st Defendant arose out of a tendering process. Essentially, tendering is a formal process where businesses are invited to bid for contracts from public or private procurement entities (PEs), when such PEs, either need specific skills for a project or a supply of goods and services on an ongoing basis. In the course of proving its case, the Plaintiff called one witness, Pw-1 who testified that, on 02nd March 2012 the 1st Defendant floated a Tender No.ME-20/2012/13/HG/G/01 for supply of tinned and dry Food, “Meals, Ready-to-Eat” and, that, the awardee to that tender was the Plaintiff. He testified that, as per the award letter, the Plaintiff was to supply 18,573 cartons and be paid TZS 4,913,131,500/=. The tender advert soliciting for bids and the addendum to the tender No.ME- 20/2012/13/HG/G/01 were admitted as Exh.P.3 and Exh.P4. According to Pw-1, this tender was awarded to the Plaintiff. He submitted in Court a tender award letter, Exh.P.5. This letter was dated the 02nd day of March 2013 and was addressed to the Plaintiff Company. However, on 9th May 2013, Page 9 of 29 the Plaintiff received a tender cancellation letter which this Court admitted as Exh.P6. The said Exh.P-6 purported to cancel the tender due to some unprecedented financial limitation experienced by the 1st Defendant. The letter, (Exh.P6), informed the Plaintiff that the goods were to be scheduled for the next financial year which was to commence July 2013. According to Pw-1, the Plaintiff sent a response letter which this Court admitted as Exh.P7. Through Exh.P7, the Plaintiff informed the 1st Defendant that, the respective goods subject of the awarded tender to the Plaintiff had already been ordered and were due for arrival at the Port on the 20th July 2013 or an earlier date. Perhaps one of questions which presses my mind before I venture further into the details of this matter and which tallies with the first issue herein, is: what is the status or value of the letter of Award (Exh.P-5)? Essentially, a letter of award, also known as an award letter, is a written document sent by a PE confirming that, the particular bidder to whom it has been sent is a successful bidder and will be awarded a contract. Generally, such a written notification of award will constitute the formation of the contract. Now, in this case at hand, there is no dispute that the 1st Defendant issued Exh.P.3 and Exh.P-4 and, that, following the Plaintiff’s bidding for the tender, the 1st Defendant issued her with Exh.P5 – the letter of award. This is supported by the testimony of Dw-3 who tendered in Court Exh.D-5, a record on investigation dated 25th April 2013 Page 10 of 29 and which admits, in paragraph 1, that on the 02nd March 2013 the Tender Board of the 2nd Defendant had awarded a tender to the Plaintiff. If paragraph 1 of Exh.D-5 is read together with Exh.P-5, therefore, it is clear that Exh.P-5 had a status of a legally valid agreement. In his testimony, Dw-3 seems to put out a caveat that, much as the Plaintiff was awarded the tender as per Exh.P.5, he was, nevertheless, advised to go to the Chief Logistic and Engineering at Tanzania Peoples’ Defence Forces, (CLE) for contract signing and other modalities on how to execute the contract. In other words, what Dw-3 is trying to insinuate is that, there was no contract yet as between the Plaintiff and the Defendants. Indeed, that is what Dw-3 stands for, if one reads paragraph 7 of his testimony in chief where he contends that, “the 2nd Defendant did not expect that the Plaintiff could continue to buy MRE without signing the contract….” In my view, however, if one was to flow with Dw-3’s reasoning, that would utterly be an incorrect thinking. In fact, it seems that, the Defendants never learnt from their own mistakes or that, things on the part of the Defendants’ camp are left loose at some administrative levels, be it at the Ministry responsible for the 2nd Defendant or that, some decisions are made ad-hoc, without proper legal consultations and proper advice being obtained from the 3rd Defendant. If so, then, that is a sad state of affairs. Page 11 of 29 I hold it to be so, because, in the case of John Timothy Nyasanga t/a Just Dear Investment vs. Ministry of Defence and National Service and Attorney General, Civil Case No.176 of 2011, this Court (Mwandambo, J (as he then was), dealt with a somewhat similar issue regarding the status of two award letters issued by the 1st Defendant to the Plaintiff and the value of an advice that, the awardee of the tender was to liaise with the Chief of Logistics and Engineering (CLE) of the TPDF. In that case, the Court asked whether such award letters constituted a valid agreement. In response to that question, the Court had the following to say: “The learned counsel did not address this aspect in their submissions but I think the answer to that question must be in the affirmative. It is clear from the pleadings and evidence that before issuing exhibits P1A and P1B, the 1st Defendant had advertised tenders for the supply of specified items. From the legal point of view, the Plaintiff's response to the tenders amounted to an offer which was accepted by the 1st Defendant through letters of award (exhibits P1A and P1B). Each of the letters of award constituted an agreement within Page 12 of 29 the meaning of section 2(h) of Law of Contract Act Cap 345 [RE 2002]. The requirement to the Plaintiff to liaise with the Chief of Logistics and Engineering at TPDF Head Quarters was only restricted to formalities of the contract and elaborations on how to accomplish the assignment. In other words, the bargain was completed with the letters of award made by a competent authority….” Form the above position, which I find quite applicable in this case as well, the conclusion is that, a contract between the 1st Defendant and the Plaintiff was indeed created even in this present case. The first issue, therefore, is partly responded to in the affirmative. But, was there any breach of that contract by any of the parties? In my view, a meaningful response to that question, can only go along with the tackling of the 2nd and 3rd issues which were: whether the goods were imported in the names of the 1st and 2nd Respondents (Defendants herein) and, whether the goods were cleared by the 1st and 2nd Respondents (Defendants herein). Page 13 of 29 I will respond to these issues jointly. In his testimony, Pw-1 told this Court that, indeed, the Plaintiff imported the goods which were the subject of the tender award and, that, it is the 1st and 2nd Defendants who assisted in the clearance of the cargo at the Dar-Es-Salaam Port (a clearance which was made without paying the requisite taxes as such were exempted, it being a sensitive government cargo). Tendered in Court to prove that there was such importation, was a copy of Original Bill of Lading Surrender Notice for Bill of Lading (B/L) No. HJSCSB3M625500 which was received as part of Exh.P17. and, also as Exh.P-19. The particular “Surrender Notice” bears the consignee’s name of the 2nd Defendant. It is worth noting that, in the earlier ruling issued in respect of this case, (Baco & Ayoub Co. Ltd vs. Permanent Secretary Ministry of Defence and National Service and Another, Comm. Case No.40 of 2015 (Ruling) (unreported), this Court defined a “Surrender Notice of Bill of Lading”, this being one of the many terminologies used in Admiralty and shipping logistics. The Court had this to say: “By definition, a surrender bill of lading (B/L) is a document that allows a consignee to legally own the shipped consignment. The document is issued by the exporters to terminate their ownership over the sent goods, thus, Page 14 of 29 transferring ownership to the importer. A ‘Surrender Notice’ therefore, indicates that, the original bill of lading has been surrendered at the carrier’s office of origin. From the shipping point of view, where the bill of lading has been surrendered at the carrier’s office of origin, the original of the bill of lading will not be required to receive the shipment at the destination. That will mean, therefore, that, the consignee will, upon proof of or proof of identity receive the goods without presentation of the Original Bill of Lading. By definition, a consignee under such a document, is the person to whom the goods or times are consigned or shipped. In other words, it is the entity who is financially responsible (the buyer) for the receipt of a shipment.” Apart from the Original Bill of Leading Surrender Notice, which bears the name of the 2nd Defendant as the ‘consignee’ of the cargo, and which forms part of Exh.P-17, other documents Page 15 of 29 forming part of Exh.P-17 (collectively), included sample copies of B/L attached to the Surrender Notice, a letter from TDFA responding to a request from the 2nd Defendant to do lab-test for a sample of Ready to Eat Meal, clearance letter from TRA dated 26 September 2013 as well as letter from Ports Authority dated 27th September 2013, all having reference to the 2nd Defendant in relation to the goods procured by the Plaintiff. Received also from Pw-1 was Exh.P-14, a letter by the Plaintiff requesting for the 2nd Defendant’s assistance to clear the cargo at the Port and notifying the 2nd Defendant that, the consignment had already arrived, together with Exh.P-20, a letter from the 1st Defendant dated 24th September 2013 addressed to the Commissioner General, Tanzania Revenue Authority (TRA), informing him about the arrival of the consignment and asking for clearance assistance without observing the basic customs formalities. That letter seems to have received the attention of the TRA as per Exh.P-21 and Exh.P-22 which were letters, one by the Commissioner General of the TRA to Wharf Manager, advising for a prompt clearance and waiver of customs formalities in respect of the cargo imported by the Plaintiff as per the same particulars of the B/L No. HJSCSB3M625500 and, the other, by Port Manager advising that the cargo would be cleared by the 1 st Defendant. From the above observations and considerations, it is clear to me that the goods were imported and the consignee was the 2 nd Page 16 of 29 Defendant. In that regard, the 1st Defendant is also directly involved in the importation and clearance of the same goods. The 2nd and the 3rd issues, therefore, are responded to affirmatively. However, if there was a contract and the Plaintiff did perform it by supplying the contracted goods, was the Defendants in any breach thereof? I think the above question I asked is an important one which seeks to address the other part of the first issue which was left unaddressed. From the testimonies received by this Court, including the testimony of Pw-1 and Dw-3, it is clear to me that, the Plaintiff was not paid for the services she delivered. In essence, the grimmest part of the controversy between the two parties to the contract seems to have cropped out of the cancellation of the tender, Exh.P-6. It is worth noting, however that, in any case or manner whatsoever, the cancellation could not have rescinded the contract by any manner possible. As it is well understood in contract law, rescission which is defined as the unmaking of a contract between parties, is supposed to be a mutually agreed act where both sides to a contract consent to it. And if so agreed, normally the party seeking rescission must offer to give back all benefits he or she has received under the contract such as an "offer of tender", so as to bring the parties, as far as possible, back to their original position in which they were before they entered into a contract (the status quo ante). Page 17 of 29 For the above understanding, it is clear therefore, that, since a contract cannot be rescinded in part, it would also be unjust to destroy a contract in toto when one of the parties has derived a partial benefit, by a performance of the agreement (see: Capcon Holdings Plc vs. Edwards & Ors [2007] EWHC 2662 (Ch) (12 October 2007) citing the case of Sheffield Nickel Co vs. Unwin [1877] 2 QBD 214 – 223). In such a situation, however, the practice has been to allow the party complaining of the non-performance, to resort to an action for damages due to breach. But, where, for instance, the supplier supplied inferior products, the buyer, according to the more convenient practice, is allowed in let’s say in an action for the price, to give evidence of the inferiority of the goods in reduction of damages, and the Plaintiff who might have as well broken his contract, will not be entitled to recover more than the value of the benefit the Defendant has actually derived from the goods. However, where the latter has derived no benefit, the Plaintiff cannot recover at all. The situation in this present suit before this Court is, however, different. In this case, the Plaintiff supplied what was agreed upon only that the 2nd Defendant purported to cancel the tender on mid-air and, in spur-of-the-moment, without any mutual consultations with the Plaintiff. As I stated earlier, that unilateral act could not in any way possible amount to a rescission of the contract and, the Plaintiff is entitled to claim for specific performance of the contract. Page 18 of 29 According to the testimony of Dw-3, the cancellation was prompted by a Memo (Exh.D-5) which hailed from the Lieutenant General Chief of Staff directing the Chief Logistics and Engineering (CLE) to stop all issues of Meals Ready to Eat (MRE), and, hence, the issuance of Exh.P-5. However, much as Dw-3 contended that, the Plaintiff was informed vide Exh.P-6, as correctly responded to by the Plaintiff, vide Exh.P-7, the flight had already left the airport and none could stop it from scaling her wings over the clouds, meaning that, the contract was already sealed off and any cancellation thereof was a blatant breach. In fact, even the way the cancellation took place is by itself a violation of the procurement procedures since, as it was also stated by this Court in the case of John Timothy Nyasanga t/a Just Dear Investment vs. Ministry of Defence and National Service and Attorney General (supra), the only organ of any procurement entity authorized to cancel a tender is the Tender Board. In that particular case, this Court stated, and I quote: “the bargain was completed with the letters of award made by a competent authority and …. the competent authority to award tender for the TPDF was the Ministry's Tender Board which had the power to alter or cancel any award. Accordingly, once the Ministry's Tender Board Page 19 of 29 had made the awards … they could not have been altered … as contended …. In my judgment, … any alteration of the quantities was of no legal affect. Such alteration did not change the contract already concluded ….” (Emphasis added). From the above analysis, it is clear that, the 2nd Defendant should take note that, in any decision-making process in this country, the need to ensure that all laws, regulations and procedures governing the process, such as procurement process, are strictly adhered to before taking a final stand. That is part of good governance and rule of law, a path which this country has chosen to subscribe to and, if that is to be adhered to, it will outrightly guarantee prosperity and ease of various entities to do business in this country. From such an understanding, it will not, therefore, matter from which level or angle the order to cancel the tender came from. What matters is whether the procedures were adhered to, and whether it was an appropriate decision to be taken post the tender award and more so, without proper and prior consultation or involvement of the Plaintiff. In view of all such observations, as I stated earlier hereabove, the cancellation letter (Exh.P-6) had no effect and could not in any manner possible, rescind the contract. Since the 1st and 2nd Defendants did not pay for the goods which, Page 20 of 29 themselves took part in the process of clearing them from the port, there was a blatant breach of the contract. The fourth issue is: Whether the goods have been consumed by the 1st and 2nd Respondents (Defendants herein). In his testimony, Pw-1 stated that having delivered the goods at Gongolamboto Godowns belonging to the 2nd Defendant, and, that, upon subsequent inquiry, he found that such were consumed by the 2nd Defendant. However, Pw-1 did not provide any proof to that effect regarding their consumption. On her part, however, Dw-4, told this Court that, the goods are still in the 2nd Defendant’s godowns as the Plaintiff failed to remove them despite being asked to do so by the 2 nd Defendant since 2013, 2016 and 2017. To substantiate her averments, Dw-4 tendered in Court a letter Exh.D-6 which was dated 15th November 2013 requiring the Plaintiff to remove the goods. Further, during cross-examination, Dw-4 stated that, the goods were shifted from the stores and were kept in containers to date. From the testimony of the parties, it seems that the goods were not consumed as contended by Pw-1. The fourth issue is, thus, responded to negatively. But, even if the fourth issue is not responded to affirmatively, will that have any real effect to the case? I think not. Whether they were consumed or not, the crux of the matter was that, the 1st and 2nd Defendants had already breached the contract when they cancelled it unilaterally and refused to pay after the goods were delivered to them. Page 21 of 29 With that conclusion in mind, and there being breach of contract, what follows is a consideration of the final issue: to what reliefs are the parties entitled. Section 73 (1) of the Law of Contract is instructive that, where there is breach, there should be payment of damages. The section states that: “73.-(1) Where a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.” The need to ensure that compensation is made payable to a party suffering from an alleged breach of contract is based on the legal philosophy that, the obligation to honour what was agreed by the parties to a contract is a fundamental or cardinal principle in the law of contract. In Simon Kichele Chacha vs. Aveline M. Kilawe, Civil Appeal No.160 of 2018 (unreported), the Court of Appeal of Tanzania was of an emphatic view that: “It is settled law that parties are bound by the agreements they freely entered into and this is the cardinal principle of the law of Page 22 of 29 contract. That is, there should be a sanctity of the contract as lucidly stated in Abualy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R 288 at page 289 thus: - 'The principle of sanctity of contract is consistently reluctant to admit excuses for non-performance where there is no incapacity, no fraud (actual or constructive) or misrepresentation, and no principle of public policy prohibiting enforcement.” It follows, as emphasized here above, that, in a contractual relationship as the one in which the parties herein were drawn into, each of them was expected to honor her or his contractual obligations. Essentially, in law, each party to a contract is entitled to perfect performance of the terms agreed which terms, as in this case, include full payment for what was supplied by the Plaintiff to the Defendant. Similarly, each party expects to obtain the benefit of the deal agreed by the contract, meaning that, if a party doesn't receive the benefit of the contract by reason of the other party's breach, the innocent party has a legal right to recover compensation for their loss in damages. That being said, to what reliefs then are the parties entitled? In the prayers contained in the plaint, the Plaintiff has prayed for a number of things. One of Page 23 of 29 them is a claim for payment of by the Defendants of TZS 4,913,131,500/= being the principal amount agreed upon by the parties to the tender awarded to the Plaintiff by the 1st Defendant. Having gone through the evidence, I do certify that this is an appropriate claim and the Plaintiff is entitled to be paid for such a contracted sum having specifically performed her part of the deal. The Plaintiff has also claimed payment of TZS 3,000,000,000/= being compensation for loss suffered due to failure to pay on time and failure to honour the contract. This is a specific claim which, never the less, was not strictly proved. It is a matter of legal requirement, however, that, a claim for specific damages or losses, must be strictly pleaded and proved. The cases of Zuberi Augustino Mugabe vs. Anicet Mugabe [1992] T.L.R. 137; Stanbic Bank Tanzania Ltd vs. Abercrombie & Kente (T) Limited, Civil Appeal No.21 of 2001 (CAT) (unreported), and Strabag International (GMBH) vs. Adinani Sabuni, Civil Appeal No. 241 of 2018 (unreported), laid emphasis on that fact. Since the Plaintiff did not demonstrate how such a loss was arrived at, this Court cannot grant such a prayer. It is therefore hereby declined for such a reason. It is also noted from the Plaint that, the Plaintiff has claimed to be paid TZS 1,000,000,000/= being interest, penalty, annoyance and disturbance suffered due to failure to pay on time. On the same note, there being no proof as to how such amount was arrived at, I decline the prayer. Although the Plaintiff Page 24 of 29 tendered in Court Exh.P-23 and Exh.P-24 regarding the loan which she had failed to repay, that, in my view, has no direct connection with the tender. However, it is clear to me that, the particular tender won was not won because the Plaintiff had taken a loan. A tender award has criteria to be met and whether one’s sources of funds are a loan from a bank or otherwise, such cannot be a criterion for the award since it is not and should not be the matter for which the PE should be held accountable for. A person who applies for a tender must have the requisite financial ability to deliver and cannot if she/he was relying on borrowing from a bank as her/his sole basis for her/his survival to later use that as a sword when things go awry. Moreover, repayment of any loan is a borrower’s obligation. As such, I do not find such exhibits to be helpful. On the other hand, the Plaintiff has also prayed to be paid TZS 500,000,000/= as compensation for loss suffered in the whole course, time wasted in the investment, exemplary damages and punitive damages. Essentially, exemplary damages and punitive damages are the same thing. They are damages awarded in addition to actual damages in certain circumstances. Punitive damages are considered a punishment and are typically awarded at the court's discretion. Moreover, such damages are awarded when the defendant's behavior is found to be especially harmful, i.e., when the defendant's willful acts were malicious, violent, oppressive, fraudulent, wanton or grossly reckless. Page 25 of 29 In my assessment, however, since no evidence was demonstrated by the Plaintiff to that effect, I cannot state that such behaviors were exhibited in the case to warrant that I exercise my discretion to award such damages as prayed. That being the case, I, consequently, decline from granting the prayer as well. What I only find plausible and justifiable is that, the Plaintiff is entitled to general damages. The position of the law, however, is that, general damages may be awarded for inconvenience caused by the Defendant and to be eligible for general damages the Plaintiff should have suffered loss or inconvenience to justify award of general damages. It is also now settled that substantial physical inconvenience, or an inconvenience which is not strictly physical and discomfort caused by breach of contract will entitle the Plaintiff to general damages. In this case, the Plaintiff did generally suffer losses and inconvenience given the challenges she encountered all along to this date since the year 2015. Such losses are to be catered for through an award of general damages. However, it is trite law, that, in awarding general damages, the quantification of such damages is at sole discretion of the court. In Peter Joseph Kibiiika and Another vs. Patrice Alloyce Mlingi, Civil Appeal No. 37 of 2009 (unreported) the Court of Appeal was of the firm view that: Page 26 of 29 “It is the function of the Court to determine and quantify the damages, to be awarded to the injured party. As Lord Dunedin stated in the case of Admiralty Commissioners vs SS Susqehanna [1950] 1 ALL ER392, ‘If the damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question’. "(Emphasis added). In the present suit at hand, taking into account that the Plaintiff has also claimed for general damages and considering the evidence available which shows that indeed the Plaintiff has suffered, it is my decision and I therefore so hold, that, the Plaintiff is entitled to her prayer for an award of general damages which, in the circumstance of this case, I assess such to the tune of TZS 100,000,000/- as general damages. The Plaintiff is, as well, entitled to be paid costs she incurred of prosecuting this case. In the upshot of the foregoing discussion, the balance of probability tilts in favour of the Plaintiff whose case succeeds and for that matter, this Court settles for the following orders: 1. That, the Defendants breached the contract of supply of Meals Ready Page 27 of 29 to Eat (Tender No. ME- 020/2012/13/ HG/G/01.) 2. That, the Defendants are to pay the Plaintiff TZS 4,913,131,500/= being the agreed principal amount arising from the award of tender Tender No. ME-020/2012/13/ HG/G/01 for which goods were procured and duly supplied by the Plaintiff to the 1st /2nd Defendants. 3. That, the Defendants are to pay TZS 100,000,000/= as general damages. 4. That, the Plaintiff is entitled to Payment of interest at Court’s rate of 7% on the aforementioned amounts in Nos.2, and 3 here- above, from the date of this Judgement until date of final payment, thereof. 5. That, the Defendants are to pay all costs incurred by the Plaintiff in this suit. It is so ordered. DATED AT DAR-ES-SALAAM ON THIS 09TH DAY OF FEBRUARY 2023 Page 28 of 29 ................................... DEO JOHN NANGELA JUDGE Right of Appeal Explained. Page 29 of 29